Supreme Court adjourns hearing in Article 35 A to January 2019: Hearing deferred due to eight-phase local body polls in J&K

The case related to a batch petitions challenging the constitutional validity of Article 35 A was adjourned for the third time by Supreme Court on Friday. Article 35 A provides special rights and privileges to natives of Jammu and Kashmir. The Supreme Court adjourned the case after taking note of submissions by the Centre and the Jammu and Kashmir government that there was a law and order problem in the state. A bench headed by Chief Justice Dipak Misra was informed by Attorney General K K Venugopal and Additional Solicitor General Tushar Mehta, representing the Centre and Jammu and Kashmir government respectively that in view of the impending eight-phased local body elections and law and order situation in the state, the hearing be deferred. “Let the elections take place. We are told that there is a law and order problem,” the bench which also comprised Justices A M Khanwilkar and D Y Chandrachud said while adjourning the hearing to the second week of January on petitions challenging Article 35 A. [caption id=“attachment_5086631” align=“alignleft” width=“380”] File image of Kashmiri traders protesting against the petitions in the Supreme court challenging the validity of Article 35 A. PTI[/caption] Article 35 A, which was incorporated in the Constitution by a 1954 Presidential Order, accords special rights and privileges to the citizens of Jammu and Kashmir and bars people from outside the state from acquiring any immovable property in the state. It also denies property rights to a woman who marries a person from outside the state. The provision, which leads to such women from the state forfeiting their right over property, also applies to their heirs. Speaking to CNN-News18, Independent MLA Engineer Rashid said that he was disappointed by the Supreme Court decision. He said that these are tactics of buying more time and if the Centre was honest in its efforts, it should have straight away sought the scrapping of the petition and not another date for the hearing. He termed today’s developments as ‘disappointing.’ Life across the Kashmir Valley was adversely affected by a separatist-called protest shutdown to voice support for Article 35 A. Joint Resistance Leadership (JRL), a conglomerate of separatists headed by Syed Ali Shah Geelani, Mirwaiz Umer Farooq and Yasin Malik called a complete shutdown on Friday to highlight support for the article. All shops, public transport, other businesses and educational institutions remained closed in Srinagar and other places in the Valley. Attendance in government offices, banks and post offices was badly affected because of non-availability of public transport in the city and other districts of the Valley. At the outset, ASG Mehta said local body elections for the post of 4,500 sarpanch seats and other local body posts would be held in eight phases and begin in September and continue till December. “If the local body elections are not held then a fund of Rs 4,335 crores meant for local bodies will lapsed,” he said while seeking adjournment of the hearing and referred to the prevailing law and order situation in the state. The argument seeking adjournment was advanced after the bench indicated that it would hear the petitions in September itself to decide as too whether the petitions challenging the validity of Article 35 A can be referred to a five-judge Constitution bench. “Large number of paramilitary forces are there. Let the elections go on calmly and thereafter hear these petitions in January or March. This issue has been very sensitive,” Venugopal said. The ASG said that though this Article relates to “gender discrimination” it is not the right time to hear the petitions. Senior advocate Ranjit Kumar, appearing for a group opposed to the Constitutional scheme, raised the issue and said persons who migrated to Jammu and Kashmir and are living there for last 60 years, do not get benefit of employment or admissions in medical and engineering colleges despite living there for so long. Political parties, including the National Conference and the CPI(M), have moved the Supreme Court in support of Article 35 A that empowers the state assembly to define “permanent residents” for bestowing special rights and privileges to them. An NGO, ‘Ikkjut Jammu’, has also filed a plea seeking quashing of the provision. It has said that Article 35 A furthers the “two nation theory which is against the theory of secularism”. The state government, while defending the Article, had cited two verdicts of the constitution benches of the Supreme Court in 1961 and 1969, which had upheld the powers of the President under Article 370(1)(d) of the Constitution to pass constitutional orders. The Article was incorporated in the Constitution in 1954 by an order of President Rajendra Prasad on the advice of the then Cabinet headed by Jawaharlal Nehru.